WE’RE BACK! THE CURRENT ISSUE OF THE AMERICAN BANKRUPTCY LAW JOURNAL IS READY FOR YOU!

Greetings everyone! The Winter 2024 issue of the American Bankruptcy Law Journal is online and waiting for you. It’s our Symposium issue for 2024.

On September 19, 2024, the ABLJ held its biennial Symposium, bringing together experts in the bankruptcy field to discuss the role of bankruptcy law in the larger U.S. legal system. Indeed, the underlying core objectives of the Bankruptcy Code often arguably come into conflict with other either substantive law or procedural rules. In those instances, should the Bankruptcy Code win?  Are there valid reasons to defer to the Bankruptcy Code’s objectives over others?  Does it depend on the disputed legal issue or the facts of the particular case? The Symposium discussion and the related academic papers endeavored to provide a few plausible answers to these and other important questions and certainly make a meaningful contribution to this ongoing conversation.

Great reading awaits you. Enjoy.

Terry

Judge Terrence L. Michael
Editor in Chief
American Bankruptcy Law Journal

IN THIS ISSUE

This introduction highlights the theme of the symposium–is bankruptcy that special, and if so, why?–and the perspectives of the four symposium authors who provide their own answers to, and variations on, that theme. It gives the readers a chance to pause in their busy days to ask themselves about our bankruptcy system and their own roles within it.

To read the article, click here.

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Bankruptcy exceptionalism, which was called into serious question by the Supreme Court in Harrington v. Purdue Pharma L.P., pushed the outer parameters of the remedial elasticity of the Bankruptcy Code. In this essay from Professor Douglas G. Baird, by contrast, he examines the founding conceptions of the laws of corporate reorganizations rooted in Butner v. United States, which focused on not altering state law rights except to the extent necessary to resolve creditors’ collective action problems. In doing so, he explores the challenges that the minimalist account of corporate reorganizations must confront to be effective and balanced.

To read the article, click here.

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Professor Pamela Foohey is noted for her research and scholarship regarding the reasons consumers file for bankruptcy relief. She has also written on the mental process consumers undertake before making the painful decision to file bankruptcy. Her article “The Periphery of Bankruptcy Law: The Importance of Non-Bankruptcy Issues in Consumer Bankruptcy Cases” combines these two considerations to explain how state law issues precipitate bankruptcy filings. Professor Foohey examines how state law exemptions, UCC security interests, and federal and state consumer protection laws influence bankruptcy filings. Professor Foohey also argues that because bankruptcy court may be the court where most citizens seek judicial relief; judges, attorneys, and trustees should consider how debtors can address their concerns about filing bankruptcy to the court. Professor Foohey suggests if debtors were afforded “procedural justice”, debtors would not only better understand the bankruptcy process but also feel they had a voice in the adjudication of their case. Professor Foohey concludes if debtors had an opportunity to tell their story, debtors would find more legitimacy and integrity in the judicial process.

To read the article, click here.

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In a continuance of his criticism of the claim of bankruptcy exceptionalism, in his symposium article Bankruptcy in Conflict, Professor Jonathan Seymour discusses three potential consequences to so-called bankruptcy specialization. Utilizing artwork from the New Yorker’s View of the World, he examines how the self-characterization as specialists can result in bankruptcy lawyers’ viewing ordinary legal issues through the proverbial camera-lens of bankruptcy. Seymour next applies recent Supreme Court trends away from deference to specialized courts or agencies to utilize their knowledge to fill gaps in governing law in support of his argument that we must move from a telephoto to panoramic lens. Finally, with these concepts in mind, he considers how these two principals are seen in recent Supreme Court decisions resolving conflicts between statutes, specifically the need for the removal of the filter on a lens that severely limits consideration of policy considerations. At its core, Seymour highlights a need for bankruptcy specialists to reconsider their lens selection and reframe their view on the world away from exceptionalism and towards resolving bankruptcy contests using ordinary (and not extraordinary) tools of statutory interpretation.

To read the article, click here.

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As part of the ABLJ’s 2024 Symposium, Judge Christopher Klein agreed to participate in an interview conducted by Professor Nancy Rapoport concerning his experiences and insights from the bench. Judge Klein was not a bankruptcy practitioner prior to taking the bench in 1988; rather he came to the bench with a military and civil litigation background. His comments offer food for thought for both experienced and newer bankruptcy professionals and complements nicely the general theme of the Symposium, namely the role of bankruptcy in our larger legal system.

To read the article, click here.

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Professor Steven L. Schwarcz
Honored for ABLJ Article

The 2024 recipient of the Grant Gilmore Award, which is given in recognition of superior writing in the field of commercial finance law, is awarded to Steven L. Schwarcz for his extraordinary article Bankruptcy-Remote Structuring: Reallocating Risk Through Law, published in the American Bankruptcy Law Journal, Volume 97, Issue 1 (2023)